The movement towards arbitration of disputes is hardly new, and the advantages of arbitration over typical litigation hardly novel. Efficiency, flexibility, the potential to choose an arbitrator who is an expert in the domain under examination — all these factors have combined to make arbitration a highly attractive option for the resolution of commercial disputes.
One other advantage of arbitration is frequently noted: the ability to keep proceedings (and results) confidential. There is a publicity and good will cost to public litigation — particularly when some subjects of popular interest are put under the microscope. Parties (and defendants in particular) will often seek to avoid the scrutiny that comes among with a public hearing.
This advantage for private parties comes at a cost for the public, however. Publicity and transparency breed accountability — both for litigants and for the justice system as a whole. A strong body of consistent jurisprudence supports the rule of law. Even in a Civilian system that is less dependent on precedent than its Common Law cousin, the disintegration of jurisprudence would be a worrying trend.
In my younger days, when there were a handful of major channels and you had to wait a week for a new episode of your favourite show to air, the Nielsen ratings were king. By following a sample of homes and tracking their viewing habits, Nielsen let us know what shows were popular and who was watching what. The latter was often more important than brute popularity — Melrose Place famously charged as much as a top show for commercial airtime simply because of the demographics it delivered to advertisers.
Everyone knew the Nielsen system wasn’t perfect, but what mattered was that it was a common authority for everyone to follow.
Tracking who watched movies in theatres was even easier: the hallowed box office returns. An industry standard — which provided another common authority.
But then came Netflix. People were no longer paying for movies at the box office, or watching all their tv with their Nielsen box. The data of their watching habits was still being created and monitored — with a high degree of accuracy too. But this information was now proprietary to an institution that did not want to make it all public. Netflix famously guards its viewership data jealously.
In the Internet age, concerns surrounding privacy usually involve the logging of personal information that previously was difficult, if not impossible, to track. Amazon knows your shopping preferences far better than your neighbourhood department store ever did. Many people feel an invasion of privacy, and a key policy question moving forward this century is how to regulate the ability of companies to track personal information that, decades ago, could not even be tracked.
Netflix’s secrecy over viewership data speaks to another problem: not just the tracking of data, but the privatization of data. The refusal to share data. It is fascinating sociological data that Seinfeld was the top-rated television program among White households at the same time it ranked 50th in African-American homes, revealing what the New York Times called a “racial divide”. What could a deep dive into Netflix’s database tell us about our society?
All of this may be a missed opportunity, but as far as I’m concerned, it’s not particularly offensive. Netflix is a private company. Many private companies do research that would be beneficial to throw out into the public domain. We don’t force them to. As a society, for many good reasons, we have not decided that data about people’s viewing habits is a public good, meant to be shared in the commons.
That’s where arbitration comes in. Binding judgments rendered by someone whose decision-making authority is recognized by the state are not comparable to the number of tweens who watch the reboot of Full House on a regular basis. The latter is the subject of curiosity; the former is the foundation of our democracy.
We have not reached the point in our judicial history where arbitration has overtaken litigation as the primary mechanism of dispute resolution, even in commercial matters. But as policymakers rightly look for new and creative ways to offer access to justice to litigants, and unclog delays in the courts, arbitration can be expected to take an increasingly prominent place in our justice system.
I write as a proponent of arbitration, in appreciation of the overall good it can bring to private litigants and the justice system as a whole. It is because arbitration is so attractive that we need to be mindful of the implications that its success can bring. So let us be careful and remember:
It is one thing to Netflix Hollywood. It is quite another to Netflix justice.
Arbitration and the publicity of precedents need not be diametrically opposed concepts.